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Lord Ackner: My Lords, before the noble Baroness sits down, she referred to what has gone on over the past 40 years. I think she has overlooked the fact that the purpose of the amendment is to iron out the anomalies between the discretionary life sentence and the mandatory life sentence. That anomaly has arisen only since the Criminal Justice Act 1991, and more so since 1993 when the practice direction required judges, save in exceptional circumstances, to exercise their powers under Section 34; so that in truth and in fact the anomalous position which we are seeking to alter has been in existence only three years.

Baroness Elles: My Lords, I am grateful to the noble and learned Lord for making that statement. My point is that it is the mandatory life sentence that has been in force since 1965. It is that which has in fact created the anomalous position in which noble Lords now find themselves.

Baroness Mallalieu: My Lords, I shall briefly add my voice to those who support the amendment. It is of paramount importance that justice should be done in public. To make decisions behind closed doors and in private about how long a convicted murderer should serve is both unjust to him and, more important, unjust to the family and friends of his victim.

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The anomaly which undoubtedly exists today between a mandatory and a discretionary life sentence is plainly a nonsense. I am surprised that the Government do not grasp this opportunity provided by the amendment to remedy that anomaly.

4.15 p.m.

Lord Lowry: My Lords, I remain strongly in favour of the amendment. Your Lordships now have a better idea than before its consideration in Committee of the grounds upon which the amendment is resisted. I wish to refer to those grounds shortly. Perhaps initially I may quickly summarise the points I made on an earlier occasion. First, under the proposal, if a recommendation is made in court, the accused hears it and will be able to appeal. If he does not that fact in itself is a guide to the Home Secretary. If he does appeal, the Court of Appeal will hear submissions, as with an appeal against sentence, and give its decision, with reasons, in open court. That procedure must be of great assistance to the Home Secretary.

At present, if the judge does not make a recommendation at the trial, he may die or retire before giving the advice. In every case, of course, the Lord Chief Justice has a duty to advise. He considers the case on paper, without the benefit of argument—here I rely on a regrettably extensive experience in another jurisdiction—and he has little alternative, unless he considers that the first recommendation is right out of line, but to confirm that recommendation, if one has been given. That is not helpful.

My second point was that a recommendation, although not part of the sentence, is an important part of the administration of justice, and should be treated as such, and justice must not only be done but be seen to be done. It is increasingly accepted that that principle applies also to executive actions.

Thirdly, the Home Secretary's power and executive discretion remain intact. He will continue to have the last word, but that last word will be pronounced with the benefit of much more helpful advice than heretofore.

What is said against my noble and learned friend's apparently reasonable proposal? I hope that the Minister will allow me to say that your Lordships all agree that she invariably treats with good sense and moderation every subject on which she touches, but I must respectfully suggest that on this point she has been given a difficult brief.

The word "anomaly" has been mentioned, but as I ventured to point out in Committee, the real anomaly is the mandatory life sentence for murder which neither the judge who pronounces it, nor the Home Secretary—or indeed the general public—contemplates being carried out save in a very exceptional case. I agree that there is an anomaly where the judge pronounces a life sentence as he must and then recommends what part of that sentence should be served. That could not have happened when the mandatory sentence was the sentence of death. Whether to commute that sentence and how long an accused whose death sentence was commuted—that is, changed into a life sentence—

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should stay in prison were purely executive decisions for the discussion of which in open court there could be no place.

Let me consider briefly some of the supposed objections. One is that some trial judges may not make a recommendation at the trial. My noble and learned friend the Lord Chief Justice meets that by saying that he can give a practice direction. A further objection then is that it would not be good legislative practice to pass a law which would have to depend upon a practice direction for its effectiveness. My noble and learned friend dealt thoroughly with that point. However, perhaps I may add that the further objection could easily be met by enacting a statutory provision in the same terms as the proposed practice direction.

The second point that was made was that under the present law there is room for a judicial view, including that of the Lord Chief Justice. That is true. However, the view expressed by the Court of Appeal under the new law would be infinitely more valuable. Thirdly, as a reason for preferring the present system the Minister relied earlier on the need to maintain public confidence in the system of justice. Understandably, she contemplated the possibility of occasions on which the Home Secretary would differ from the judges. I suggest that openness in the administration of justice is one of the main foundations of public confidence.

Furthermore, under the proposed law the Home Secretary will have the benefit of advice based on reasoned discussion—advice which he may be more likely to feel able to accept because it is likely to be better advice. And when he does not accept the advice, the Home Secretary is his turn can state his reasons openly. Secrecy, on the other hand, erodes confidence, and now that thanks to a ruling of your Lordships' House in its judicial capacity an accused must be told what the judicial recommendation was, discrepancies between that recommendation and the course taken by the Home Secretary behind closed doors can be publicised informally in quite a misleading and harmful way from the point of view of both the Bench and the administration.

Finally, would it not be wise for us to recall that these recommendations are made by the same judges who are already entrusted, subject to the Home Secretary's exercise of the Royal Prerogative of Mercy, with the task of fixing the length of imprisonment in cases of attempted murder, conspiracy to murder and other crimes in respect of which a life sentence can be but need not be imposed? Of course, such sentences can be considered on appeal by the Court of Appeal.

Recently my noble friend Lord Campbell of Alloway was kind to me in this Chamber. Therefore, I hope that he will not consider me churlish if I refer to his comment about the unique gravity of the offence of murder. We can probably remember without difficulty that murder is what has been called—admittedly called by me—a "result" crime. You may not intend to kill someone but if you intend seriously to injure him and he dies that is murder. Attempted murder and conspiracy to murder require the element of an intention that somebody should be killed. That sounds potentially even more serious as regards the moral obliquity.

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As the noble and learned Lord the Lord Chief Justice reminded us, the amendment is based entirely on the acceptance, at least for the time being, that the mandatory life sentence, of which I very much disapprove, will continue in force. We must not be sidetracked into the argument that this is all about the mandatory life sentence; it is about the right way to go about dealing with it.

I was pleased to see the noble Lord, Lord Windlesham, and to hear what he said. He gave one Home Office view, but your Lordships will remember that the noble Lord also had considerable experience of a Home Office nature when he served in the Northern Ireland Office. That was when I first had the honour of meeting him. In view of the noble Lord's experience, it behoves us to pay great attention to him. I submit that in reality the proposed amendment can only help the Home Secretary. Therefore, I strongly support it and hope that it will be adopted.

Lord Rodgers of Quarry Bank: My Lords, on behalf of Members on these Benches, I associate myself with the amendment. Unfortunately, I was not present when the matter was discussed in Committee but I looked at the Official Report, in particular at the words of the Minister in rejecting the amendment which was then tabled. She said:

    "Parliament has taken the view...that there should be a distinction between murder and other crimes which are subject to life sentences. That is the point at issue".

However, I do not believe that was the point at issue then and clearly from our debate today it is not the point at issue now. The Minister continued:

    "There is not only a distinction but a distinct process through which cases have to go".—[Official Report, 8/6/95; col. 1486.]

She implied that in some way the amendment interfered with that process.

It is plain that the point is narrow: it is whether the process should be secretive, as it is now, or whether it should be transparent, which is what the amendment is designed to achieve. It is unfortunate, and perhaps a reversal of the expectations of many of us, that the judiciary wishes to see change in favour of greater openness, while Ministers—the politicians—wish to retain a process that is secretive. Change will come. The only question is whether it will come today or later.

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